Tuesday, October 12th, 2010

Here’s Part 2 of my conversation with the fine journalist Angus Batey of The Guardian. (Part 1 is here.) Angus was pulling together material for a piece that came out last Friday on hip-hop reissues.

In this clip, we get deeper into the lost Public Enemy Def Jam boxset, geek out on what hip-hop boxsets could include, and speculate on what this all means for how we pass on our shared musical and cultural history.

Angus: Public Enemy has got a box set out now, but it’s just of the post-Def Jam material. I imagine those issues over clearances for previously unreleased material will remain an issue for Universal. Chuck D has told me that it would have been easy to do under the Def Jam/Sony relationship because there was – to paraphrase him – a very different set of corporate instincts regarding the risk inherent in that kind of project; but after Def Jam was bought out by Universal there was a change in attitude.

He also talked about something he called “new discovery” which would happen if and when anyone went back to the original PE master tapes and remixed or remastered them: there are sonic elements on those records which are unidentifiable, and indeed pretty much inaudible, in the finished and originally released versions, but without which the tracks don’t work – yet the legal onus would be on the company releasing a remaster to go through the multitracks and ensure every last thing was cleared. Chuck said those PE albums didn’t just contain samples from hundreds of records – they came from thousands.

Full clearance would be impossible under the present free-for-all rules; and there is absolutely no incentive for any of the people in the clearance industry to have those rules changed — unless, of course, it could be definitively demonstrated that a flat-rate clearance system would enable so much more sample clearance to take place that the overall sums involved would mean the whole pot of money accruing to each entity along the chain would be greater than that generated through the present system.

Here’s a different question: As a music nerd I yearn to be able to buy something like a box set of “3 Feet High and Rising” that includes all the b-sides and remixes but also the out-takes, the demos, the failed skit ideas, and has a big booklet with new interviews with the band and Prince Paul about how they made the record and what was going on in their heads at the time.

Yet when I’ve talked to them – and other artists behind similarly iconic releases – they often say that there wasn’t anything left over, that what went on the record was pretty much it. I don’t get the sense that there’s something sitting there in the vaults waiting to be discovered, like Joel Dorn did with the Coltrane box set when he found all those alternate takes of Giant Steps on the master reels and you can get to listen in on the masterpiece taking shape – but I also don’t get the sense that anyone in the labels, or indeed often anyone in the bands, cares about finding it if it does exist. Was hip hop so different from every other musical form that we need to find new ways of thinking about its history, of re-telling its canonical stories? Or do you think there’s an untold history out there that hasn’t been excavated properly yet?

Jeff: The first part of that question has to do with the process and technology of hip-hop production post-mid 80s. I believe Prince Paul if he says that there’s not much left. It just goes to the fact that most jazz needed to be recorded live in a single take and that artist improvisation was the standard. With hip-hop production everything is structured, written or mapped, then delivered, punched in and fixed in the mix. What might be revealing is, say, if groups recorded freestyle sessions for practice, or kicked 16 on a radio show. But there is a vast—I mean endless—amount of documentation to be done on the pre-mid 80s live performances. I mean like club shows or battles or community center jams. Those tapes do exist and there is a market for those, but I know of only a few people who have even thought about trying to go there.

Angus: Over the years, talking with artists who are very aware of the wider historical context of their music such as Chuck D or ?uestlove or Shadow, it’s become apparent to me that the job of curating hip hop’s on-record history seems to have fallen squarely on their shoulders. I don’t get the feeling this is the case with other genres – we don’t expect Ornette Coleman to be the driving force behind a retrospective box set of his Atlantic recordings, or rely on Paul McCartney to kick-start a Beatles reissue program. Whose job is it, ultimately, morally, actually, to maintain hip-hop’s history? And what does and should that job entail?

Jeff: I guess the job has been left to us—the folks who sit at the intersection of being artists, DJs, historians, and—uh—hipsters all at once. I don’t think this is optimal at all. We need curators, musiciologists, recording and sound technicians, and yes, label execs and marketers to do this project properly. I would love to make the argument for government support but the political climate is sour and the lack of capacity on the part of our national cultural institutions is dispiriting.

Angus: Are concepts of “history” when it comes to recorded music now just so much hot air? When I was a teenager, once a record was no longer a current release and had disappeared from shops, that was it – there was no way of getting it, so it might as well not have existed. Today, pretty much the whole of recorded sound is available to anyone at any time, instantly – so someone who’s 14 and has just heard about this band Public Enemy for the first time can go to the website and read all about them and what they did and why they were important, can instantly download all of their back catalogue, can see their videos on YouTube, and browse collections of cuttings, features and write-ups that help explain their context.

So to today’s audience it’s almost like there’s no distinction between “catalogue” and “new” material, because it’s all out there and easy to access and available if you want it. Does that mean that the “traditional” record industry construct of repackaging the classic album on the 20th anniversary, etc., is now redundant and irrelevant in terms of the ongoing life of the culture?

Jeff: First off I don’t believe that all of recorded sound is available, although certainly a 14 year-old like mine can be up on many kinds of music in ways we never could have imagined. But I don’t think that—whatever you want to call it, call it the wiki age or the condition of postmodernity—means that a classic album, like a classic book, is any less important as a cultural thing.

It is certainly true that the way that thing is approached and used is different, and that is a real problem for marketers and especially for artists who seek some sort of compensation for their work. It may mean something different as well to the 14 year-old, and that is a lesser problem for anthropologists to solve.

But to get back to the point I began with, most of recorded sound is not free—and there are good reasons why they shouldn’t, ask the artists. The social problem here is the question of cultural memory. Why do we privilege certain forms of cultural memory over others? And what does that privileging do to both the memory and the society that countenances that inequality?

Huge shout to Angus Batey for initiating the convo. Follow him on Twitter @angusbatey.

Great discussion and one that doesn’t take place enough.
First off is the last point in this conversation. I agree with Jeff that sadly most of the music ever recorded isn’t available,(start here for more info:www.npr.org/blogs/therecord/2010/09/29/130209952/a-national-legacy-at-risk-in-the-digital-age?ft=1&f=1039) because the record companies just don’t deem them economically viable.
This despite evidence that releasing material (not just music) can generate money. Perhaps not in the quantity labels may have been use to but there is money in them there vaults. Not only that but there are 1000’s of avid music fans out there who will re-master, clean up, re-mix, write liner notes and everything else in between, for free. It cannot be beyond the ability of these companies to find ways of doing this and still protecting the artists integrity and ability to make money.

It is also though what you both point out. Our cultural memory and heritage is deemed non-important unless there is an economic opportunity and then suddenly it is the most important thing in the world, to be protected against those terrible pirates. It is never for the good of the artists but to protect the labels interest. Ask the artists how the majority are treated by their labels.

Until our popular culture, our history, our shared experiences are recognized as being just as important as high art or the building of empires and long gone kings and queens (I’m English!) things will not change. My history is entwined with bands like Nigel the Spoon and Egyptian Fringe playing in venues like the Mermaid or the Barrel Organ. The archive I’ve started allows the space for users to talk about these groups and venues, to construct and share their own history as told through popular music.

Finally, copyright is broke. It is no longer fit for the purposes it was originally created for over 300 years ago. It is now all about protecting the profits of the big media companies. Chuck D, Prince Paul et al may be right that there is nothing left to use. Well ok, why don’t they let us look then. The truth is most labels catalogues are in a terrible state with no idea who owns what. As my colleague Andrew Dubber (check http://deletingmusic.com) has argued, copyright is important but it doesn’t need to be on the 50/70 years term it currently is. Let’s start talking about renewable terms, every 5 or 10 years. If you are still making money from a particular piece of music, great, renew the license and keep on keep on. If your not then you lose it, it comes into the public domain to be re-used by someone else. This would certainly help in the sample issues as well. After all, all art is just an interpretation and a remix of what has gone before!
Sorry for the slightly rambling post but great to see other people bring this topic out into the open.

Got to say that while I agree with the thrust of your post about cultural memory and so forth, I’m not sold on the solution you propose.

Stepping back for a moment from the sampling/hip hop catalogue discussion and looking at things from my perspective as a freelance journalist, I don’t view copyright as irredeemably broken, I just think that access to the mechanisms that make it function is denied to me as an independent individual, so if anything it’s too weak to work to my benefit and is in need of strengthening. I’ve had my work stolen, re-used, “interpolated”, even the journalism equivalent of sampled (where something I’ve written has been excerpted then used as the basis of another piece of work which is then re-sold for profit by the re-user without my permission, any revenues being paid, or even any acknowledgement given), and there’s practically nothing I can do about it before or after it happens. My reaction to that is not to say “copyright isn’t fit for purpose, it should be abolished”, but to want to fight for effective, meaningful, easy and cheap access to the same laws corporations are currently the highest-profile users of. At present, I simply don’t have the option of legal action in the vast majority of instances. The law as it stands does not allow for punitive damages to be paid to the victims of copyright theft, only damages equivalent to what you would have charged had the person who committed the theft come to you beforehand and asked permission. This means that the law is actually on the side of the re-user, because the maximum penalty that will be levied is what they would have paid had they done the right thing and sought permission and a license beforehand. The law as it stands has the opposite effect intended – it more or less encourages copyright abuse, because the penalties aren’t a deterrent and the cost of enforcing them is so high that most creators without the backing of a corporation and their retained lawyers won’t even be able to afford to take action to recover what are going to be trifling amounts anyway (in the UK, as you’re probably aware, claims for damages in civil actions for a few hundreds of pounds would be heard in the Small Claims Court, but copyright is deemed too complex for that avenue so is likely to require High Court action, with all the resultant increases of costs that come with barristers and so on). To me, therefore, we need to strengthen copyright law and make access to it cheaper and easier for individual rightsholders – not dismantle it and give up.

My argument against the short-term renewal you suggest is again with the artist in mind. I realise your intention is to remove cultural history from behind what Jeff calls the copyright wall, and as someone who cares greatly about this art form I’m with you in spirit on that. However, the solution you propose doesn’t benefit artists, unless they get first refusal on renewing those rights. Fair enough, if a corporation has some music it won’t reissue and isn’t commercially exploiting – yeah, let’s see if there’s a way to get that back out into the open. But if it becomes public domain, then it’s not just the corporation that loses out – it’s everyone they would have to pay royalties to, including the recording artist and presumably also the songwriter. While the label may not feel the amounts earnable are likely to make a reissue worthwhile, the artist may well depend on the dribble of mechanical or broadcast royalties that are still coming their way from a minor hit released decades ago. Is the culture or the history best served by denying them that income? Is cultural memory more important than keeping a retired musician out of poverty? I’m sure you don’t think so, but these are likely outcomes of such a proposal. Now, if, after the label fails to renew, as per your suggestion, the artist could choose to renew the copyright, and own it themselves, without having to pay a fee to anyone to do so, then that really would be something. But I still don’t agree that just because something is old that someone ought to be able to sample it without paying the original artist. Part of having a history and a cultural memory is knowing and respecting that history – there is a responsibility there as well.

Much of the debate around copyrights in the music industry seems oblivious to this: it’s as if the technology, by its existence, has removed morality from the equation. The technology exists to permit me to break into my neighbour’s house and steal their stuff (a crowbar, say); but I don’t do that, partly because there’s a high chance of being caught and the punishment would be one I would consider a significant deterrent, but also because I know it’s wrong. I’d argue that taking someone else’s work, using it to make a profit, then not cutting them in on the deal, is just as untenable a position ethically. The problem with sampling law as it has developed is, as noted above, the ability of the original rights-holder to determine their own price regardless of the amount used or the nature of the new work created from it. I think it’s fair and logical to argue that if someone raps for four minutes over a beat made from a single sample source, then more money ought to be paid to the original artist than if the same sample was used for one second in a four-minute piece made up of 1000 different samples; but the way things stand at the moment, the original artist can charge the same for both, or, indeed, more for the latter, if they so wish. This is where I honestly don’t know the best answer, because I believe it’s fair enough for an artist to dictate their own terms and absolutely their right to be able to choose to ultimately say “Sorry, no, I don’t want my work used in that way.” We would presumably all support the right of an artist who wouldn’t want their music sampled by, for instance, sectarian, racist or misogynist artists – similarly we’re likely to support an artist who doesn’t want their music to become a theme song for a political party they don’t support. If we support that, then we have to support their right to say “no” to sample uses they personally don’t like. Yet it seems odd that a songwriter can’t object to someone covering their song, provided it’s properly credited and the relevant royalties are paid to the original songwriter. There’s a disconnect there which is holding back the art, and I also believe it’s stopping the original artists getting paid because it’s deterring people from sampling in general. The answer, to me, is somewhere in the middle, as touched on in part one – some form of compulsory license, as Jeff notes, based on a proportion of income accruing to the sampling artist, not a finger-in-air figure that holds sampling artists to ransom, but where the original artist retains the right to say “Sorry, but no – I don’t allow this use of my work.”

There is a whole heap of unreleased classic stuff, though a lot of it now leaks online, so labels don’t feel that they can make enough money from releasing it “properly” in many cases.

Although, I don’t know if you saw that the early Death Row catalog was bought out and they started releasing music from that, legally. Unreleased tracks from the Chronic and Doggystyle and tracks with different vocal takes, lyrics, different mixes of the beats, beats with different elements, and beats where they later became something else (I don’t mean like recent remixes or anything like that, it was all stuff done during the original sessions).

Also, don’t know if you consider it classic, but a lot of the 2Pac ‘All Eyez On Me’ stuff recently leaked, illegally – there were many tracks that had different elements to the beat and changed lyrics, very interesting stuff if you were a fan of the original tracks.

Firstly it’s great that these types of discussions are taking place (and not wanting to distract from the original purpose of highlighting the discrepancy between hip hop and other music forms).
I need to emphasise that the thrust of my argument is not to get rid of copyright but that it swings back in favour of the artist. Re-reading my comment I can see that I didn’t make that explicit. Renewable Copyright should revert to the creator if it is not is not viably economic for the rights holder. Artists would definitely gain some economic benefit (and be way more imaginative in the use) from their back catalogues. If the artist makes no use of the material then I do think it should revert to the public domain. For me this is how our culture evolves. We take from what has gone before and turn it in to something new. Of course creators should be paid but I think the reality is that even now lots of artists don’t receive the royalties they are entitled to. Music is littered with destitute and impoverished musicians.

I think you are also right in your example of your own work being used without permission and you not receiving recompense for it.

I think we are arguing the same point here though . Copyright, unless you have deep pockets, is hard to uphold and so it becomes the preserve of those corporations, not the creators. The discussion about copyright is dominated by big businesses who have direct access into governments and those agencies set up to uphold copyright, where is our voice? And this is partly what I mean by Copyright is broken, or certainly not fit for purpose on the current age as more and more people become creators and share their work via the internet.
To be continued…

Thanks again Jez – I’m in complete agreement, with one proviso: sometimes an artist may want to retain the copyright on their material but not be in a position to do anything with it (it costs to release records, after all – and even digital downloads incur some costs to the rightsholder). So I’d be fully in favour of the proposal you make, should it be amended to allow the rightsholder, if they are the artist/writer/creator, to renew their copyright even if they haven’t “made use of” the rights during the preceding period. I know that doesn’t break down the walls entirely, but it’s something I think I’d be comfortable with, versus saying “use it or lose it” to someone who may want to but not be able to, which seems a bit harsh.

So, now that we’ve sorted that out, who do we campaign to for changes to the law?!

Thanks so much for a fascinating discussion. I just wanted to make sure Lawrence Lessig’s name came up in this discussion, as he has done a masterful job of stoking this debate in legal circles (as the CC logo at the bottom of this page testifies). His book Remix deals with many of these issues, although he does not know hip-hop like y’all (we’all, the cipher) know hip-hop. Keep this up!

Hi Angus, this is just really a discussion piece to at least start a debate. I think there will be better and dare I say more thoughtful ideas than mine! There is some academic thought going on here but that really needs to cross-over to the wider public.

I’d be keen to look at some sort of public event where we can at least start a campaign, or get likemided people in a room!

Hi Matthew,

You are absolutely right Lessig is a leader in this field especially in Creative Commons.

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I think this is one of those things where one person or a small group of people will have to give up a lot of time and effort to see a change in the law to make sampling fair.

Talking about it is of course the first step, but to implement these ideas someone has to become obsessed to the point of throwing a lot of time at it, in my opinion.

In the same way everyone for ages had wanted a thorough history of Hip-Hop, and it was only when Jeff stepped up to the plate and spent years bringing it together did it finally happen in a way people were satisfied with…

I don’t know if there is that someone or someones out there yet that is willing to sacrifice that much time and effort for sampling.

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